Sanu Naik And Another vs State Of Orissa
2025 Latest Caselaw 5586 Ori

Orissa High Court

Sanu Naik And Another vs State Of Orissa on 19 August, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No. 222 of 1997

(In the matter of an application under Section 374 of Criminal Procedure
Code)


Sanu Naik and another            .......                     Appellants

                               -Versus-

State of Orissa                 .......                      Respondent

For the Appellants : Mr. Mohammad Fardish, Advocate

For the Respondent : Ms. Sarita Moharana, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 12.08.2025 :: Date of Judgment: 19.08.2025

S.S. Mishra, J. On a quiet day in the year 1995, a household was

touched not by joy or laughter, but by an act of cruelty so sudden and

senseless that it stilled a life before it had even learned to smile. The

victim was an infant, just two months old whose world was no larger

than the warmth of her mother's arms and the simple rhythm of her own breath. In that sanctuary, where every child ought to be safest, the

accused-appellant, in the heat of a trifling quarrel, struck the child with

a stick and alas, the fragile life slipped away while still cradled in her

mother's embrace. The trial court, years ago, found the accused guilty of

this act, yet the shadow of finality has not yet fallen; for this appeal,

pending for nearly three decades, stands as a silent testament to the long

journey of justice. Time may have blurred the voices of witnesses and

dimmed the vividness of memory, but the weight of a young life lost

remains unchanged, pressing upon the conscience of this Court as it now

turns to decide this appeal.

1. The present appeal arises from the judgment of conviction and

order of sentence dated 19.09.1997 passed by the learned Sessions

Judge, Mayurbhanj, Baripada in S.T. Case No.105 of 1995, whereby the

learned trial Court convicted the accused-appellant No.1 under Sections

304 Part II and 324 of the Indian Penal Code, 1860 (hereinafter referred

to as ―the Code‖ for brevity), and both the accused-appellants under

Section 323/34 of the Code. Accused-appellant No.1 was sentenced to

undergo rigorous imprisonment for three years and to pay a fine of

Rs.5,000/-, in default to undergo rigorous imprisonment for a further

period of three months, for the offence under Section 304 Part II of the

Code; and further to undergo rigorous imprisonment for two years and to

pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for

two months, for the offence under Section 324 of the Code. Additionally,

both the accused-appellants were sentenced to undergo rigorous

imprisonment for six months and to pay a fine of Rs.1,000/ each, in

default to undergo rigorous imprisonment for one month, for the offence

under Section 323/34 of the Code. The Court below directed that the

sentences awarded to accused-appellant No.1 shall run consecutively.

2. During pendency of the appeal, the appellant No.-2 Makuru Naik

has expired. Therefore, the appeal qua him stood abated. The appeal is

now confined to Appellant No.1.

Prosecution Story

3. The prosecution case, in brief, is that on 25.01.1995 at about 5:00

p.m., the informant, Manaranjan Naik, met accused Sanu Naik and

accused Makuru Naik at Khiching market. The informant demanded

repayment of Rs. 60/- from accused Makuru, which he had earlier

advanced as a loan. Accused Sanu, being a friend of Makuru, replied that

the informant was not entitled to the money as he had taken wood from

the forest which the accused persons were guarding. The informant

denied cutting any wood and pressed his demand, whereupon accused

Sanu dealt two fist blows to the informant's face. At that time, accused

Makuru uttered abusive words towards the informant. The informant left

the place and ran towards his house.

At about 6:00 p.m. on the same day, accused Sanu came to the

informant's house armed with a stick, accompanied by accused Makuru.

Accused Sanu declared his supremacy, abused the family members, and

entered the house. He assaulted the informant's wife, Basanti Naik, with

kicks and blows. Hearing the commotion, several villagers, namely Sashi

Dei, Baidhar Naik, Srimati Naik, Jema Naik, and Niranjan Naik, came to

the spot and protested. Accused Sanu, however, assaulted them

indiscriminately with the stick.

At that time, Jaimani, wife of Niranjan Naik, came out of her

house holding her two-month-old daughter, Sumita, in her arms and

protested against the assault. Enraged, accused Sanu gave three lathi

blows to Jaimani, announcing his intention to kill her and her baby. One

of the blows struck the child on the head. The accused persons then left

as more people gathered. The injured baby was taken to Sukruli hospital,

where she succumbed to her injuries at about 8:30 p.m. on the same day.

The matter was reported to Raruan Police Station on the same night, and

investigation commenced. The Investigating Officer visited the spot,

prepared necessary records, held inquest over the dead body, and sent it

for post-mortem examination. The doctor opined that the child had

sustained a fracture and other internal injuries caused by a blow with a

stick or lathi, and that the injuries were sufficient in the ordinary course

of nature to cause death. Statement of three key witnesses, namely,

Jaimani Naik(mother of the deceased), P.W.4 Suresh Naik(eye-witness)

and P.W.3 Kausalya Naik(an injured person) were recorded under

Section 164 Cr.P.C. The injured persons were medically examined, and

after completion of investigation, charge sheet was submitted against

both the accused persons. Accused Sanu Naik was charged under

Sections 302 and 324 IPC, while both accused were charged under

Section 323/34 IPC. They pleaded not guilty and faced trial.

4. The prosecution in order to establish its case examined as many as

14 witnesses. Out of them, P.Ws. 1, 2 3, 5, 9, 10 and 11 were the injured

witnesses, P.Ws. 4 & 12 were the eye witnesses to the occurrence,

however they haven't received any injury like the other eye witnesses.

P.W. 7 was the seizure witness, P.Ws. 6 & 13 were the doctors and P.W.

14 was the Investigating Officer.

Trial Court Judgement

5. While appreciating and analysing the evidence available on

record, the learned trial Court arrived at certain specific findings. For the

sake of clarity and ready reference, the said findings, as recorded by the

trial Court, are reproduced herein below in its entirety:

10. No doubt the mother of the girl Jaimani has stated before the court that accused Sanu was shouting to kill her

as well as her baby, which is not her version under Ext. 17 while giving statement before the Magistrate on 10.2.95.According to her statement, the blow fell on her daughter, as she turned to receive the second blow.

Accepting the version under Ext. 17, it can never be said that the accused had no knowledge of causing death while beating a woman by means of a stick carrying a baby in her hands of two months only. The injury report of Jaimani shows injuries on her upper limb as well on her lower limb. Here I may mention the illustration of the leamed counsel. In the said illustration, the pick-pocket was not aware of a loaded gun in the pocket of a man, which he wanted to pick. Therefore, he is not responsible for the death of the man for the accidental shot. In the instant case, the occurrence progressed at the dusk of the day in the locality where both the accused reside to be witnessed by all the neighbours. The accused Sanu has already attained 36 years and not in his teen. Further the accused is quite literate to sign in English and it is expected that he knew the probable consequence of the injury which he may inflict on the baby incidentally. So, accused could have abstained from everything which is at all likely to cause death. The possibility of death of a two months child is very likely by an accidental blow by a stick while a lady is beaten with a baby in her arms. Therefore, the knowledge that it is likely to cause death must be attributed to accused Sanu. So, he is guilty US 304 Part II, I.P.C. for causing the death of Sumita instead of Under Sec. 302 I.P.C. and I convict him thereunder at all likely to cause death.

11. Accused Sanu Naik is further found guilty Under Sec 324 I.P.C. for assaulting all other injured persons by means of a stick and I convict him thereunder.

12. Both accused Sanu Naik and Makuru Naik have been charged Under Sec. 323/34 I.P.C. The evidences of P.ws, 1,8 and 12 are cogent and trustworthy. During the first occurrence at Khiching market, while the accused Sanu Naik delivered the fist blows to P.W.1 Manaranjan Naik, the other accused Makuru Naik was saying SALA KU AHURI BADA". The doctor found a bruise on the Chin of

Manaranjan Naik under Ext. 12, who examined him on 26.1.95 at 5.15 P.M. Immediately after the first occurrence at Khiching market, P.W. 1 narrated about the incident to his wife P.W.8. The testimony of both the witnesses finds corroboration from the evidence of P.W. 12, who saw the occurrence of dealing the fist blows to P.W. 1( Manaranjan Naik), at Khiching market. The very presence of accused Makuru Naik being an accomplice has given encouragement, support and protection to accused Sanu Näik for actually committing the act. Section 34 émbodies the common sense principle that if two or more persons intentionally do a thing jointly it is just the same, as if each of them had done it individually. Here, the factual aspects shows accused Makuru's presence not only at Khiching market, but also in the place where subsequent occurrence of assault on the witnesses & finally resulting in the death of Sumita took place. So, both the accused persons are guilty Under Section 323/34 I.P.C. for assaulting P.W.1 at Khiching market, and I convict both of them thereunder.

Aggrieved by the aforementioned finding recorded by the learned

trial Court which led to the conviction and sentence passed against the

appellants they have filed the present appeal.

6. Heard Mohammad Fardish, learned Counsel for the appellants,

and Ms. Sarita Moharana, learned Additional Standing Counsel for the

State.

Examination of evidence

7. During the course of hearing, this Court has taken on record, in

detail, the submissions advanced by the learned counsel appearing for

the appellants as well as for the respondent-State. The Court has

meticulously examined and analysed all the evidence available on

record.

At the outset, while considering the deposition of P.W.2, the

mother of the deceased, Jaimani Naik, this Court notes that she has

categorically deposed that appellant No.1, Sanu, dealt blows upon the

deceased child with a thenga. For the sake of ready reference, her

statement is reproduced herein below:

"The occurrence took place on a Wednesday, evening more than two years back. At that time I was in my house. The accused Sanu and Makaru were doing MAR PIT at that time near our house. I came out holding my child (KAKHEI THILI) Sumita. I told the accused saying "SANU KAKA KAHINKI JHAGADA KARUCHHA". To this the accused told to assault me as well as my child. Accused Sanu gave two stick blows to me. Sanu gave one stick blow to the head of my child. My child lost sense. Both the accused persons ran away."

She stood to her statement even during her cross examination and

stated as under:

"It is a fact that I have stated before the Magistrate (US 164 Cr.P.C.) that while I was holding my child (KAKHEI THILI), the accused Sanu dealt another blow for which I turned and the blow fell on the head of my child"

8. Proceeding further, the evidence of P.W.4, who was an eye

witness is found to be in complete corroboration with the testimony of

P.W.2, the mother of the deceased. The relevant portion of his deposition

is reproduced for ready reference:

"2. At that time I heard some hullah near the house of P.W.1. I saw the accused Sanu was holding M.O.I and was assaulting all indiscriminately. At that time Jaimoni came out with her child. She was holding the baby. She protested. The accused Sanu assaulted, Jaimoni and her child by means of stick. Jaimoni shouted and cried. Both the accused persons ran away."

Likewise, the deposition of P.W.5, the grand-mother of the

deceased also lends corroboration to the testimony of the mother of the

deceased. The relevant extract is reproduced herein:

"2. I heard the cry of Niranjan's wife.i.e. P.W. 2. I went near her. At that time, accused Sanu assaulted me by means of a stick. I was examined by the doctor for my injury. I also saw the accused Sanu dealing lathi blows to my

granddaughter and Jaimani. The Lathi blow stuck to the head of my grand-daughter Sumita. We took her to the hospital where she died."

The testimony of P.W.6, the doctor who conducted the post-mortem

examination on the body of the deceased, is also found to corroborate the

account given by the mother of the deceased. The pertinent portion is

reproduced for ready reference:

―No external injury was seen, but one depression fracture of the frontal bone extending from the centre of the head towards left fore-head measuring about 2½" from the centre point extending towards right parietal bone measuring 2" and towards right fore-head measuring 2"."

Similarly, P.W.8, the wife of the informant, has deposed in line with the

other prosecution witnesses, and her statement also finds corroboration

with their evidence. The relevant part of her testimony is reproduced

herein:

"5. At that time Jaimoni came with her child Sumita and protested the action of the accused Sanu. Thereafter the accused Sanu gave two lathi blows to Jaimani, so also one blow to the head of the child saying "TA CHUA KU MARI KI MARAI DEBI". The child lost her sense.

6. We took her to Sukruli hospital, where she died."

P.W.11, another witness who happens to be a neighbour of the

deceased, has also given a version that is in consonance with the

testimonies of the above witnesses. The relevant extract is reproduced

for ready reference:

"3. At that time Jaimani came out with her child Sumita. The accused Sanu also dealt blows by M.O.I to Jaimani and her child.

The child lost sense and was taken to the hospital, where she died."

9. In addition to the oral depositions before the learned trial Court,

this Court has also taken into account the statements of (i) Jaimani-

mother of the deceased Sumita, (ii) Suresh, and (iii) Kausalya recorded

under Section 164 of the Code of Criminal Procedure. These statements

are also testimony to the fact that appellant No.1, Sanu, dealt lathi blows

to the infant, which ultimately proved fatal. The said statements which

were originally in Odia are translated are reproduced herein for ready

reference:

Jaimani stated: "In that Sanu shouted in abusive language and hit blows with a stick. It hit the left part of my waist. I was holding my child in my arms, while Sanu hit the second blow I turned

around. The blow hit the head of my child. My child was only two months old, hit by the blow portion of her head went inside. I took her to the hospital. My child died."

Suresh stated: "I was at home during the evening hours of 25.01.1995. Hearing commotion I ran towards the spot. Sanu was hitting Jaimani with a stick. Makuru was saying "BADA BADA". The blow of Sanu hit Jaimani's child. Jaimani's child started crying. She was taken to the hospital. She died there."

Kaushalya stated: "On last 25.01.1995 during the evening, Sanu hit everyone with a stick. Sanu pressing my neck, said me abusive languages. Jaimani's child died in Sonu's beating."

The learned trial Court, upon due consideration of the evidence,

found it appropriate to convict the appellants under Section 304 Part II of

the Indian Penal Code, instead of Section 302 thereof.

Analysis and Reasoning

10. Having thus delineated the statutory contour of Section 304 Part

II, this Court now turns to the evidentiary matrix. The testimony of

P.W.2 (mother of the deceased) squarely attributes the thenga blows to

appellant No.1, Sanu. Her evidence is clear, cogent and natural,

reflecting a witness with first-hand knowledge of the occurrence and

without demonstrable animus. This ocular account receives material

corroboration from P.W.4 and P.W.5, whose depositions are consistent

on the substratum of the prosecution case namely, the assault by

appellant No.1 and the participation of the co-accused in furtherance of a

common design.

The medical evidence of P.W.6, the doctor, who conducted the

post-mortem, finds corroboration with the eyewitness version by

explaining the nature, seat and possible cause of the fatal injuries.

Crucially, the medical opinion does not introduce any doubt that would

dislodge the prosecution's case; rather, it furnishes an independent

scientific anchor connecting the injury pattern with forceful thenga

blows. P.W.8 (wife of the informant) and P.W.11 further reinforce the

prosecution narrative on material particulars; their testimonies are not

only inter se consistent but also consistent with P.W.2 on the core facts,

thereby enhancing the overall credibility of the prosecution version.

11. In addition, the statements recorded before the Magistrate under

Section 164 Cr.P.C. of (i) Jaimani (mother of the deceased Sumita), (ii)

Suresh, and (iii) Kausalya, though not substantive evidence by

themselves but operate as strong corroborative material to the in-court

depositions. The narrative contained therein is harmonious with the

ocular and medical evidence and specifically fortifies the attribution of

thenga blows by appellant No.1, which proved fatal to the infant.

12. On the question of culpability under Section 304 Part II, the record

does not disclose pre-meditation, prior enmity of a nature suggesting a

design to kill, or any conduct indicative of a settled intention to cause

death or to inflict an injury sufficient in the ordinary course of nature to

cause death. The incident, as borne out from the testimonies, arose out of

a trivial provocation; the weapon used was a thenga; and the prosecution

case, at its highest, establishes knowledge on the part of appellant No.1

that his act was likely to cause death-particularly considering the

vulnerability of the infant victim but falls short of proving the requisite

intention for murder. The learned trial Court, therefore, correctly located

the offence within Section 304 Part II, where ―knowledge‖ rather than

―intention‖ constitutes the mental element.

13. As regards the conviction under Section 324 I.P.C. against

appellant No.1, the manner of use of the thenga, the body part(s)

targeted, and the resulting injuries justify the finding that hurt was

voluntarily caused by means which, in the circumstances of use, was

likely to cause death. The medical testimony and the consistent ocular

accounts adequately meet the threshold of proof for this lesser but

distinct offence.

14. Turning to the conviction of both appellants under Section 323

read with Section 34 I.P.C., the evidence demonstrates concerted action:

presence at the scene, participation in the assaultive episode, and acts

contributing to the infliction of simple hurt on other witnesses. The

convergence of multiple testimonies--free from material contradictions

or improvements on core facts--supports the inference of a common

intention to commit the assault, thereby satisfying the doctrinal

requirements of Section 34.

15. The defence has not been able to expose any infirmity going to the

root of the prosecution case. Minor discrepancies, if any, are of the kind

naturally attendant on truthful eyewitness accounts and do not impeach

the central narrative. The chain formed by (i) consistent ocular evidence,

(ii) medical corroboration, and (iii) supportive Section 164 statements

remains unbroken. In appellate review, this Court finds no perversity in

the appreciation of evidence, no misapplication of legal principles, and

no omission of material circumstances that would warrant interference.

The judgment of conviction recorded by the learned trial Court is,

therefore, unassailable and merits affirmation.

Submission by the learned counsel for the appellants

16. Learned counsel for the appellant submitted that the incident in

question dates back to the year 1995, at which time the present appellant

was approximately 36 years of age. It is urged that, with the passage of

nearly three decades since the occurrence, the circumstances surrounding

the appellant's life have materially changed. In support of his plea for

leniency, reliance is placed on the judgment of the Hon'ble Supreme

Court in Gurdeep Singh V. Jaswant Singh and Others1, wherein the

Hon'ble Court held as follows:

"5. In the result, this appeal succeeds and is allowed in part. The conviction of Appellant 1 is altered from Section 302 IPC to 304 Part II IPC. The incident is of 1978. The appellant is on bail for nearly last 10 years. In these circumstances, his sentence is reduced to the period already undergone. He is on bail. His bail bonds are discharged."

Relying upon the above dictum, learned counsel has prayed for a lenient

view to be taken in the matter of sentence, citing, inter alia, the present

age of the appellant. He further submitted that the appellant has already

undergone a period of 78 days in custody. It is also submitted that the

appellant may be extended the benefit of Section 4 of the Probation of

Offenders Act, 1958, and Section 360 of the Code of Criminal

Procedure, 1973, if this Court deems it fit and proper to do so.

Conclusions

17. In view of the aforesaid submissions, this Court has considered the

applicability of the provisions of the Probation of Offenders Act, 1958,

1992 Supp (3) Supreme Court Cases 103

and Section 360 of the Code of Criminal Procedure, 1973. Having

regards, however, to the nature and gravity of the offence, which resulted

in the death of an infant, and the grievous circumstances in which the

incident occurred, this Court is not inclined to extend the benefit of the

said provisions to the appellant. Nonetheless, taking into account the age

of the appellant and the considerable lapse of time since the occurrence,

this Court deems it appropriate to reduce the sentence imposed upon him

under all the sections of conviction to a term of six months' rigorous

imprisonment, with the period already undergone by him in custody

being set off against the said term. In addition, this Court also imposes a

fine of Rs.10,000/- on the appellant, to be paid to the mother of the

deceased in accordance with Section 357 of the Code of Criminal

Procedure. Default in payment of fine as awarded shall entail the

appellant to undergo further R.I for 1 month.

The appellant has been directed to be released on bail by the order

of this Court dated 07.10.97. The appellant shall surrender within a

period of four weeks to undergo sentence as awarded hereinabove,

failing which, he shall be taken into judicial custody by the learned trial

Court on issuing appropriate process.

18. Accordingly, the Criminal Appeal is partly allowed.

(S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 19th August, 2025/Ashok

Signed by: ASHOK KUMAR JAGADEB MOHAPATRA

Location: High Court of Orissa